I find this detail in the recent Novak Djokovic's Australian visa saga quite interesting.

On Monday, 10 January 2022, when Judge Kelly delivered his decision to reinstate Djokovic's visa, Christopher Tran (the lawyer acting for the government) told the judge that the Minister for Immigration is now contemplating using his "personal power of cancellation" (which is exactly what happened days later and was sustained by the Federal Court on 16 January 2022).

So, when Mr Tran said that to Judge Kelly, the judge thanked him for the warning, adding: "I could have been something approaching incandescent if I had discovered that for the first time... this evening or the early hours of tomorrow."

Why did Mr Tran warn the judge? Was that an attempt to make the judge change his mind and think again, like "look man, why bother reinstating the visa if it will [possibly/probably/likely/definitely] be cancelled anyway"?

Is that what should be read between the lines?

If so, how does it sit with lawyer/courtroom ethics and the expectation of judicial independence? Mr Tran would have known that Judge Kelly was supposed to make decisions independently on the merits of the case — not taking into account what the exec branch of the government might then do. Does what Mr Tran said to the judge demonstrate that he in fact did not necessarily expect the judge to be entirely independent, but expected him to possibly be prone to make decisions taking into account the politics and what the government might do?

Was that the exec branch attempt to bully the judicial branch?


1 Answer 1


Video of that portion of the hearing can be found on the court's YouTube channel.

It doesn't seem like anything nefarious. My interpretation is that Mr. Tran is just giving Judge Kelly this information because, if the Minister for Immigration does cancel the visa, Djokovic will probably challenge that decision as well, meaning more court proceedings and more work for Judge Kelly. So Judge Kelly appreciates knowing about this in advance, so that he and the court staff can immediately start getting ready to handle that case, and plan their schedules accordingly.

This is based on some further context in the video, around 12:00. Judge Kelly says (with some editing on my part):

It would be extraordinarily difficult for anyone else to get up to speed if there is to be another Tait v. Queen [[1962] HCA 57] type application. So I expect to be fully informed in advance if I am required to continue to be available for any further [unclear] proceeding that is to be sought. [...] Now if I am to be called on short notice to deal with another interim injunction [...] this court is fully entitled to be informed, in the way that you have quite properly done this afternoon and for which I am grateful. Is that clear, Mr. Tran?

Also note that Mr. Tran prefaced his remark (around 6:15) with "to avoid any unintended discourtesy to Your Honor and court staff -- I wouldn't want Your Honor and court staff to hear this through any other means." This fits more with the idea that he's informing the judge just so that he knows what's coming. Mr. Tran knows that this will be an inconvenience for Judge Kelly and he wants to minimize it by making sure he has as much advance notice as possible.

Finally, note that Mr. Tran's statement about the probable visa cancellation comes immediately after Judge Kelly had just pronounced his order (2:10-6:10), ordering that the visa revocation be quashed and that Djokovic be released, and ending the proceedings in the case currently at hand. I'm not even sure whether the judge could unilaterally change his mind at that point. But if Mr. Tran had wanted to influence Judge Kelly's decision, you'd think he would have said something much earlier. Waiting until after the decision was announced seems much more like he is trying to avoid even any appearance of trying to influence the decision.

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    "Tait and Queen [?]" refers to the High Court case Tait v The Queen
    – molypot
    Jan 17, 2022 at 10:29
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    This specific matter has been dealt with but the lawyer is making it clear that is not the final conclusion and that the judge might have further proceedings to manage. Even without the propspect of further proceedings however it would be common courtesy to advise the Judge of potential further actions in the case.
    – deep64blue
    Jan 18, 2022 at 9:41
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    I believe the [unclear] phrase is quia timet, which makes some sense in the context of an injunction against possible future harms. Dec 22, 2022 at 3:51

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